Photos, blogging and fair use

PDN online has a story on photos blogs and fair use, as Naomi Harris recently found her picture on the popular soft-porn blog fleshbot, part of the ever expanding Gawker Media empire, which posted one of Harris' photos without her permission and linked to a documentary photoessay on Harris' site titled "Porn Star Academy." The traffic-bump from fleshbot forced Harris to find a cheaper ISP, bittersweet popularity; "For all I know most of these [visitors] are probably perverts who were too cheap to pay for online porn," Harris said to PDN online.

PDN asked one veteran blogger about photo usage, and the response was the familiar misconception that by using thumbnails, cropped or low-res images, a blogger is exempted by the fair use provision. [New York-based intellectual property lawyer Nancy E. Wolff] Wolff says that's not the case where bloggers are using photos simply to enhance their site.

"One of the most important points of the fair use doctrine is the effect of the alleged infringing use on the value of the original use," Wolff says. One question bloggers should consider is whether they're supplanting a use where photographers and photo libraries traditionally license work.

Photographers hoping to utilize blogs as a potential revenue source may have a while to wait. Though a few blogs do make money, very few license photos. "We use photos from stock and pay in those cases but otherwise we're using derivatives of stuff that's generically on the Web," one popular blogger says. "Images greatly improve blog readability, but since most blogs are written for free (or very little money) I think I can reasonably speculate that if most blog owners had to pay for images no one would use them unless they could be provided at very low cost."

Gawkers disclaimer states that it follows the DMCA and links to a pdf of the Leslie Kelly, et al. v. Arriba Soft Corp. ruling, which is the case of a photographer vs a search engine image search (much like google images) that used thumbnails for visual representations of the search results. See "Kelly wins against Arriba Soft Appellate Court affirms US Copyright Law protects images located on the Internet"